Here is a question for you: If a producing party objects to a document request on, first, relevancy, and second, privilege, do the Federal Rules of Civil Procedure still require the production of a privilege log? On the one hand, if the court upholds the producerâs relevancy objection, then the costly and time-consuming production of a privilege log seems wasteful. On the other hand, requiring a court to offer piecemeal rulings on a successive layer of objections also seems wasteful.
One court hasâemphaticallyâendorsed the latter view. When the defendant in a FCRA case offered a blanket, boilerplate privilege objectionâin addition to a relevancy objectionâbut produced no privilege log, the court showed no mercy. Finding that the producerâs actions amounted to âbad faith,â and observing that parties assert privilege too âcavalierlyâ and otherwise âabuseâ the privilege too often, the Court issued the ultimate ruling: the producer waived all privilege objections. Stagger v. Experian Inform. Solutions, Inc., 2021 WL 5299791 (N.D. Ill. Nov. 15, 2021). You may read the opinion here, and I recommend that you do.
The Request
In this case, the plaintiff claims that Experian violated the Fair Credit Reporting Act by reporting that one of the plaintiffâs credit accounts was open with an outstanding balance despite alleged knowledge of her prior bankruptcy discharge. During discovery, the plaintiff sought emails and other documents related to Experianâs post-bankruptcy scrub procedures and any changes to those procedures in early 2021.
The Response
Experian objected to this request by stating–
Experian objects to this Request because it seeks information protected by the attorneyâclient privilege and work product doctrines. Experian also objects to this Request because it is not relevant to Plaintiffâs claimsâŚ. Based on the foregoing objections, Experian will not search for or produce documents in response to this request.
So, note that Experian raised a privilege objection, but also a relevancy objection, and then declared it would not even search for responsive documents. How will the Court assess this stance?
The Rule
Federal Rule of Civil Procedure 26(b)(5) provides that, when a party “withholds information otherwise discoverableâ by claiming privilege protection, then the party must âdescribe the nature of the documents, communications, or tangible things not produced or disclosedâand do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim.â
Experian did not produce a Rule 26(b)(5) privilege log. It argued, instead, that because (in its view) the at-issue documents were not relevant, then the documents were not âotherwise discoverable.â And because they were not âotherwise discoverable,â the privilege-log requirement did not activate. Experian told the Court that, if the Court rejects its relevancy objection, then it âwill collect those documentsâ and âconduct a privilege review.â
The Courtâs Reaction
The Court reacted negatively to this ânovel argument.â It noted that Experianâs privilege objection contained no description of the withheld documents or an explanation for why the privilege covered them.  And this type of âboilerplate objection,â the Court found, is âtantamount to making no objection at all.â
What about the argument that the Court should decide Experian’s relevancy objection before making the company and its lawyers conduct a costly privilege review, you ask? Well, the Court quoted Judge Posner’s observation that “the soundness of a conclusion” may “be tested by its consequences.” And, here, Experian’s position is âan argument that in practice would needlessly extend every discovery dispute and require multiple trips to court in every case: first to get a relevancy ruling and then, if necessary, to get a privilege ruling.â This argue-and-return approach to discovery disputes is contrary to the tried-and-true maxim of judicial economy because âno court has time to bifurcate virtually every discovery dispute into multiple rounds of briefing on individual objections.â
Bad Faith?
The Court also categorically rejected Experianâs âblanket claims of privilegeâ without first conducting any type of privilege review. These blanket privilege claims are âat odds with all of the privilege cases and with the basic concept of a claim of privilege,â the Court concluded. In fact, the Court posed this query:
If Experian hasnât gone over the documents, how could it claim they are privileged in its objections ⌠and in a brief filed in federal district court?
The only answer the Court could muster was that the privilege claims âwere made in bad faith and, of course, cannot be upheld.â
And drawing more from the judicial economy aspiration, the Court stated that âany attempt by a judge to make a determination of privilege without a sound factual foundation amounts to nothing more than a waste of judicial resources.â
Waiver
Noting the âhoary natureâ of the attorneyâclient privilege, the Court recognized the general reluctance to impose a waiver sanction for a partyâs initial failure to produce an adequate privilege log. But this was a different situationâthe assertion that the attorneyâclient privilege covered documents before the lawyers ever reviewed those documents âcan only be said to have been made willfully or in bad faith.â
And for this bad-faith finding, the Court ruled that Experian had waived the privilege. The documents, therefore, were not only relevant, but must be produced without regard to any privilege protection.